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Armed Forces Bill

My Lords, I am grateful to the noble Lord and I will address his point in a moment. Rules of engagement may form a document many pages long and of some complexity, detailing the nature of the operation. The card sets out guidance to a soldier operating in certain circumstances which I will come to shortly. However, we should not confuse the yellow card, as it was known during operations in Northern Ireland, or card alpha, as it is sometimes referred to, with rules of engagement. One is a sub-set of the other and we should not use the terms interchangeably. Amendment No. 34 would refine and limit Amendment No. 32. As I understand it, it would limit the defence under Amendment No. 32 to where there were rules of engagement which were relevant to conduct alleged. But the problems I have outlined in relation to Amendment No. 32 also apply here and, as I have explained, these are operational and not legal documents in their drafting. There are vital points of principle here. How are our operations to be directed if every change in the mission framework has statutory force? What effect is that going to have on the officers drafting these operational mission frameworks? How is our criminal law to work if we purport to change it between and even during operations, and how are our servicemen to be trained in what the law requires? Nevertheless, I recognise the sincere aim of noble Lords in addressing this matter. I recognise that underlying these amendments is a matter which is of the greatest importance to this House, and as we have debated the issue we have heard how in operations, servicemen who are tired, perhaps under fire and therefore under considerable pressure, may have to make split-second decisions about when to open fire. As we have just heard from the noble Lord, Lord Blaker, from his experience, it is vital that our servicemen have complete confidence in their position so that they can make instant decisions in response to a situation, given the difficult circumstances in which they often find themselves. Given that, I welcome the opportunity to give the following assurances. Whether a serviceman who opens fire and kills someone is guilty of murder depends on his view of the situation at the time, and what he does on the basis of that view. This applies both in combat and at any other time. For example, if a soldier opens fire because he believes that he is faced with an enemy combatant, he has not committed murder even if he has made a mistake. It is the honestly held view of the service man or woman which counts at all times. But inany case, a serviceman can use lethal force against anyone who he thinks is posing an imminent threat to human life. Again, what matters is the honest belief that he has in making the assessment. This is the law of self-defence and no rules of engagement can interfere with that inherent right, and as is explicitly stated on every rules of engagement profile. I believe that their training reassures all service personnel that they may trust to their view of what is happening. I hope that my statement here will strengthen that confidence. We ask a great deal of our Armed Forces. In return we owe them not only our gratitude and support but must give them the confidence to carry out the demanding and dangerous tasks we demand of them. No court martial has resulted from a combat incident in these last three demanding years of high intensity operations. At the same time, I am very aware that one case has perhaps done more than anything else to create uncertainty in this House and perhaps elsewhere about the legal position in which servicemen might find themselves—the case of Trooper Williams. I do not wish to go over the details of the case again—noble Lords are already very familiar with it—but we have, as far as possible, ensured in the Bill that such a situation cannot recur. We have also sought to ensure that servicemen do not face investigation without good reason. The Bill, therefore, makes three important changes. The commanding officer will no longer be able to dismiss a serious case so as to prevent further consideration by the service prosecuting authority. Clauses 125 and 127 provide that if the prosecuting authority decides not to charge, that authority will be able to direct that the accused is to be treated as acquitted. By such a direction, the Director of Service Prosecutions can bar prosecution in civilian as well as service courts. Lastly, commanding officers will have the general duty to ensure that allegations and evidence of offences are investigated appropriately. They will have a duty to make service police aware of allegations or evidence of serious offences. But they will only have to do this if the allegation or evidence is such as would indicate to a reasonable person that such an offence had been committed by someone in the CO’s command. The main provision is in Clause 113. We believe that this will allow commanding officers to exclude those incidents where there is simply no real evidence of a serious offence. None of us wishes to have a situation where personnel on operations face an investigation following incidents where they have acted entirely properly. As many noble Lords will be aware, for almost two years now we have had in place in Iraq a post-incident procedure. This ensures that after shooting incidents where persons have or may have been killed or injured, commanding officers gather all available information within their unit and make an informed decision as to whether there is any evidence that an offence has been committed. If they conclude that there is no such evidence, they can recommend that a service police investigation does not take place. That recommendation is put to their chain of command for agreement. If the chain of command, which takes service police and service legal advice, agrees, the report is filed. This brings an early resolution to the vast majority of incidents. It also allows us to demonstrate that our commanding officers have made an informed decision and we have an audit trail of all incidents. Even when a commanding officer determines that an offence may have been committed, he is able to delay a service police investigation if the operational circumstances demand it. His recommendation to delay has to be agreed by his chain of command, also acting on service legal and service police advice. This policy ensures, even in high tempo security operations conducted in places such as Iraq, that commanding officers retain a proper discretion as to whether there should be an investigation. It also ensures that the very rare case in which there is evidence of an offence is investigated by service police, with the support of service prosecutors, as soon as possible. In this way, the operation of the military justice system determines, for example, whether a serviceman acted in good faith. I can confirm that the post-incident policy has proved very successful—so much so that, at the request of our operational commanders, it has been adapted for use in Afghanistan. I can also confirm—this is very important—that the provisions in the Bill that I have described about the CO’s role will support such a policy. I have taken some time to set this out in some detail. These are vital issues of real importance to our Armed Forces. I hope that, as a result, members of the Armed Forces may continue to have confidence that the law takes full account of the extraordinary and dangerous requirements that they are expected to face. I hope that I have explained why—although I recognise their intention—these amendments would not be in the interests of the Armed Forces. On that basis, I cannot support them.